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approached institutional liability.148 First, Darling held that an institutional provider could be directly responsible for aspects of patient care.149 This ran counter to the then prevalent “hotel” doctrine, which viewed hospitals as a mere venues in which patients and physicians interacted.150 Second, Darling undermined the customary practice standard of care in medical malpractice cases, because it permitted accreditation standards or hospital bylaws as alternative standards of care.151 States continue to refine the corporate liability doctrine’s reach.152 For example, today most jurisdictions recognize Darling’s standard as it applies to maintaining safe and adequate facilities and equipment, selection and retention of only competent physicians, general oversight of those who practice medicine within its walls, and promulgation and enforcement of quality/safety rules and policies.153 However, some jurisdictions stop short of going beyond such meta-care duties.154 In contrast, a smaller set of jurisdictions, including Pennsylvania, have gone further as expressed by one state high court as follows:
Today, we take a step beyond the hospital’s duty of care delineated in [earlier case law] in full recognition of the corporate hospital’s role in the total health care of its patients. In so doing, we adopt as a theory of hospital liability the doctrine of corporate negligence or corporate liability under which the hospital is liable if it fails to uphold the proper standard of care owed its patient.155
This formulation places broad responsibility on healthcare institutions for all aspects of a patient’s care and treatment. Subject to the above jurisdictional variations, institutional liability exposure with regard to apps could arise to both provider-facing and patient-facing apps.
A. Healthcare Provider-Facing Apps
Hospital-provided, provider-facing apps space is relatively undeveloped. Providers have concentrated on providing mobile and tablet access to their existing suite of health information technology (HIT) products, such as electronic medical records (EMR), Clinical Decision Support software
148. Darling v. Charleston Cmty. Mem’l Hosp., 211 N.E.2d 253 (Ill. 1965). 149. Id. at 337. 150. Id. 151. Id. at 332. 152. See, e.g., Gafner v. Down E. Cmty. Hosp., 1999 ME 130, 735 A.2d 969 (Me. 1999). 153. See, e.g., Darling, 211 N.E.2d at 326; see also Thompson v. Nason Hosp., 591 A.2d 703, 707 (Pa. 1991). 154. See, e.g., Gafner, 735 A.2d at 969 (providing that Maine would be such a jurisdiction which stops short of going beyond meta-care duties). 155. Thompson, 591 A.2d at 708.